Newman v. State

• Decision Date: 05 November 2009
• Docket Number: No. CR 02–811.,CR 02–811.
• Citation: 354 S.W.3d 61,2009 Ark. 539
• Court: Arkansas Supreme Court
• Parties: Rickey Dale NEWMAN, Appellant, v. STATE of Arkansas, Appellee.

2009 Ark. 539

354 S.W.3d 61

Rickey Dale NEWMAN, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 02–811.

Supreme Court of Arkansas.

Nov. 5, 2009.

Jennifer Horan, Federal Public Defender, by: Julie Brain, Assistant Federal Public Defender, for Little Rock, appellant.

Dustin McDaniel Att'y Gen., by: Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

Petitioner Rickey Dale Newman petitions this court to reinvest jurisdiction in the circuit court to allow him to seek a writ of error coram nobis. He offers two grounds for which he claims the writ is warranted: (1) that he was incompetent at the time of trial, and (2) that the prosecutor withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We grant the petition.

Newman was convicted in Crawford County Circuit Court of capital murder and sentenced to death. He attempted to waive a direct appeal of his conviction and sentence, but pursuant to Rule 10 of the Arkansas Rules of Appellate Procedure—Criminal, this court conducted an automatic review and affirmed his conviction and sentence. See Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003). In that direct review, we concluded that there was substantial evidence of Newman's competency to stand trial. Id. at 287, 106 S.W.3d at 457.

Following our mandate, the circuit court held a hearing, pursuant to Arkansas Rule of Criminal Procedure 37.5(b) to consider the appointment of counsel to represent Newman in postconviction hearings. See State v. Newman, 357 Ark. 39, 159 S.W.3d 309 (2004) (per curiam). During the hearing, the circuit court advised Newman of his rights with respect to Rule 37.5 relief, specifically informing Newman that any waiver of those rights and Newman's willful failure to pursue relief under Rule 37.5 would result in the death sentence being carried out against him. Id. at 39–40, 159 S.W.3d at 310. In sworn testimony to the circuit court, Newman stated that he wished to waive his rights to an attorney and to waive his right to postconviction relief. Thereafter, the circuit court entered an order concluding, in relevant part, that Newman was competent to waive his right to postconviction relief. Id. at 40, 159 S.W.3d at 310.

The State subsequently filed a petition requesting that this court lodge the record of the waiver proceedings and review the circuit court's order. We denied the State's petition, due to Newman's statement during the waiver hearing that he was under the influence of his medication, namely Thorazine. See State v. Newman, 355 Ark. 265, 132 S.W.3d 759 (2003) (per curiam). Accordingly, we remanded the matter for the sole purpose of having the circuit court order the Arkansas State Hospital to conduct an evaluation of Newman to determine whether he was competent to proceed with the Rule 37.5 hearing and to waive his rights under that rule. Id.

Pursuant to our remand, Dr. Charles Mallory,¹ a psychologist with the State Hospital, conducted an examination of Newman and concluded that Newman did not suffer from any mental disease or defect and that he had the capacity to make a knowing, intelligent, and voluntary waiver of his right to have an attorney advise him on his postconviction rights. Newman, 357 Ark. at 41, 159 S.W.3d at 311. Following receipt of Dr. Mallory's report and after hearing Newman's own testimony regarding the waiver, as well as Newman's testimony that he agreed with Dr. Mallory's determination of competency, the circuit court found that Newman was competent and had knowingly and voluntarily waived his postconviction rights under Rule 37. Id. at 42, 159 S.W.3d at 312. We affirmed the circuit court. Id., 159 S.W.3d at 312.

Later, through appointed counsel, Newman filed a petition for federal habeas corpus relief in the United States District Court for the Western District of Arkansas. At hearings before the federal district court, new evidence was presented that Dr. Mallory, the sole witness at Newman's state competency hearings, incorrectly scored the test he administered to Newman, resulting in a higher IQ score; used improper tests to determine Newman's competency; and improperly administered Newman's tests. See Newman v. Norris, 597 F.Supp.2d 890, 895 (W.D.Ark.2009). In addition, Newman presented evidence not considered by the state courts regarding the reasonableness of his legal decisions at the time of his trial and appeals, as well as evidence not considered by the state courts regarding his claim of actual innocence. Id. Accordingly, the federal district court concluded that Newman had failed to exhaust all of his claims in the state courts and directed Newman to return to state court to pursue further postconviction relief. Id. at 896. ²

Newman now petitions this court to reinvest jurisdiction in the circuit court to allow him to seek a writ of error coram nobis. A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the circuit court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008).

The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Id.

Where the writ is sought after judgment has been affirmed on appeal, the circuit court may entertain the petition only after this court grants permission. Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). This court will grant permission only when it appears the proposed attack on the judgment is meritorious. Id. In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id.

Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Id. In the absence of a valid excuse for delay, the petition will be denied. Id. Due diligence requires that (1) the defendant be unaware of the fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing the petition.³ See id.

I. Incompetency at Trial

Newman's first ground for relief is his claim that he was incompetent to stand trial. At a pretrial hearing, Newman presented the testimony of Dr. Mallory, who examined Newman prior to trial. Dr. Mallory testified that Newman was competent to stand trial and rational enough to make decisions regarding his case. Newman, 353 Ark. at 269, 106 S.W.3d at 445. The circuit court found that Newman was competent to stand trial. Id., 106 S.W.3d at 445. We affirmed the circuit court's finding, stating that “Dr. Mallory's opinion is substantial evidence of Newman's competency to stand trial.” Id. at 287, 106 S.W.3d at 457.

Newman asserts in his petition that he will prove at a hearing in the circuit court that, contrary to Dr. Mallory's opinion, he was incompetent to stand trial because he suffers from a debilitating combination of psychiatric illnesses and cognitive impairments that deprived him of the capacity to fully understand the proceedings against him or to assist effectively and rationally in his own defense. He avers that Pablo Stewart, M.D., a psychiatrist, will testify that Newman suffers from posttraumatic stress disorder, chronic, with resultant major depressive disorder , recurrent, and polysubstance dependence. Newman states that Ricardo Weinstein, Ph.D., a neuropsychologist, will testify that his neuropsychological evaluation of Newman revealed that Newman has severely impaired cognitive functioning, including significantly subaverage intellectual functioning and severe deficits in executive functioning. Additionally, Newman states that family members will attest that he endured a horrific childhood, during which he was subjected to extreme physical and psychological abuse, neglect, abandonment, and loss, and that Drs. Stewart and Weinstein will explain how these experiences devastated his development and mental health. Newman states that Drs. Stewart and Weinstein will both testify that, in their professional opinion, Newman was incompetent to stand trial in 2002. Attached to Newman's petition are numerous exhibits, including medical reports supporting the conclusions of Drs. Stewart and Weinstein, as well as declarations from family members supporting Newman's claims about his childhood.

Newman acknowledges that he has sought the death penalty in this case and that he attempted to waive his direct appeal. He states that he was not motivated to secure a death sentence because of remorse or desire to take responsibility for a wrong he committed; to the contrary, he claims that he is entirely innocent of the murder. He claims that he wished to be executed because his impaired thinking made him believe that death is more bearable than continuing to live.

In further support of his petition, Newman states that new evidence has come to light that shows that Dr. Mallory's conclusions regarding his competency to stand trial are unreliable. In November 2007, Dr. Mallory testified at an evidentiary hearing held in...